Atul Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

Atul Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Application under Section 430 BNSS allowed: substantive sentence of 10 years rigorous imprisonment and fine of Rs.2,00,000/- imposed by the learned Special Judge (Forest), Shimla, in Sessions Trial RBT No. 70-S/7 of 2022/21, suspended till final disposal of Cr. Appeal No. 123 of 2024, subject to personal bond of Rs.1,00,000/- with one surety in the like amount and deposit of fine, if not already deposited; applicant to be released forthwith on furnishing bail bonds, with undertaking to appear as directed and to surrender if the appeal is dismissed.

Issue for consideration

Whether the substantive sentence of imprisonment imposed on the applicant/appellant should be suspended during the pendency of Cr. Appeal No. 123 of 2024, on his application under Section 430 BNSS.

Court's answer

Prima facie, on the unexplained variation in the seals on the case property between seizure (ten seals 'S', reseal five 'O'), inventory certification (two 'S' and two 'O' seals broken; reseal five 'R'), SFSL Junga receipt (eight 'S', three 'O', four 'R') and production at trial (ten 'S', five 'O', five JMIC-Chopal seals, intact), the prosecution failed to explain the discrepancy, which is so glaring that it may affect the core of the prosecution case and, prima facie, the possibility of tempering of the case property cannot be ruled out — a view formed only for adjudicating the suspension application.

Ratio / Principle

After hearing counsel and going through the entire evidence on record, considered prima facie for the purpose of adjudicating the application, the Court held that the applicant/appellant has made out a case for suspension of sentence imposed upon him.

Key takeaways

The applicant/appellant, admittedly a young man of 24 years, has already undergone sentence of more than three years and five months, as against the total sentence of 10 years awarded by the learned Trial Court.ratio¶39
The appeal of the year 2024 is not likely to be decided in the near future and there is nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant; therefore, he cannot be made to suffer further incarceration on the evidence led by the prosecution.ratio¶39
It is a fit case for suspension of sentence of imprisonment; accordingly the substantive sentence imposed upon the applicant/appellant Atul Kumar by the learned Special Judge (Forest), Shimla, in Sessions Trial RBT No. 70-S/7 of 2022/21, vide judgment of conviction and order of sentence dated 19.01.2024, shall remain suspended till final disposal of the appeal.

Detailed headnote1 paragraphs

NDPS Act — Suspension of sentence pending appeal — Application under S. 430 BNSS in Cr. Appeal No. 123 of 2024 — Applicant convicted by learned Special Judge (Forest), Shimla (judgment dated 19.01.2024, ST RBT No. 70-S/7 of 2022/21) under S. 20(b)(ii)(C) NDPS Act for possessing 1.192 kgs charas; sentenced to 10 years RI and Rs. 2,00,000/- fine (default 1 year SI). Case-property seals varied across stages: parcel sealed with ten seals 'S' (memo Ex. PW-1/A), resealed with five 'O' seals by SHO PW-11 Pradeep Singh; on S. 52A certification by JMIC Jubbal, two 'S' and two 'O' seals broke and the parcel was resealed with five 'R' seals (certificate Ex. P5/PW-10); SFSL Junga received it with eight 'S', three 'O' and four 'R' seals (22.12.2020), yet at trial (01.11.2021) it bore ten 'S', five 'O' and five JMIC-Chopal seals, all intact. Prosecution offered no explanation; variation so glaring that prima facie possibility of tampering could not be ruled out. Applicant (24 years) had undergone over 3 years 5 months of the 10-year sentence; appeal of 2024 not likely to be decided soon and delay not attributable to him. Following Bhagwan Rama Shinde Gosai (1999) 4 SCC 421, sentence suspended till final disposal of appeal on personal bond of Rs. 1,00,000/- with one surety in the like amount, subject to deposit of fine — observations confined to the application, not the merits of the appeal.

Neutral Citation No. ( 2025:HHC:30319 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP No. 2595 of 2025 in Cr. Appeal No. 123 of 2024

Reserved on: 03.09.2025 Decided on: 05.09.2025

____________________________________________________ Atul Kumar …..Applicant/Appellant. Versus State of Himachal Pradesh ……Non-applicant/Respondent.

___________________________________________________ Coram_

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting?

_______________________ For the applicants:	______________________________ Mr. Manoj Pathak, Advocate.
For the non-applicant/State:	Mr. J.S. Guleria, Deputy Advocate General.

Sushil Kukreja, Judge.

This order shall dispose of an application filed by the applicant/appellant under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of sentence awarded by learned Special Judge (Forest), Shimla, H.P., vide judgment of conviction and order of sentence, dated 19.01.2024, in Sessions Trial RBT No. 70-S/7 of 2022/21, for the commission of offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Act”).

The learned counsel for the applicant/appellant

1 Whether reporters of Local Papers may be allowed to see the judgment?

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contended that the appeal is likely to succeed in all probabilities as the appellant/applicant has got a very good arguable case on merits and a fair chance of acquittal. He further contended that the identity of the contraband, which was produced before the learned Trial Court is doubtful. He also contended that the appellant/applicant has already undergone the sentence of more than three years and five months, as against the total sentence of ten years and the appeal is not likely to be decided in near future, therefore, in view of the peculiar facts and circumstances of the case, the sentence imposed upon the appellant/applicant by the learned Trial Court be suspended in the interest of justice and fair play and he may be released on bail.

On the other hand, learned Deputy Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence after a full-fledged trial.

We have heard the learned counsel for the applicant/appellant as well as learned Deputy Advocate General for the non-applicant/State and have also gone through the material available on record.

The learned Trial Court convicted the appellant/applicant under Section 20(b) (ii)(C) of the NDPS Act for

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allegedly possessing 1.192 kgs of charas and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.2,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year.

The perusal of the record reveals that on 17.12.2020, at around 08:50 p.m., near Kalara Kainchi, main road Nerwa, 1.192kgs of charas was allegedly recovered from the rucksack of the accused. Thereafter, as per the case of the prosecution, the recovered contraband was put in a cloth parcel which was sealed with ten seals of seal impression ‘S’ and the same was taken into possession, vide memo Ex. PW-1/A. PW-11 SHO Pradeep Singh resealed the case property with five seals having seal impression ‘O’. Subsequently, an application was presented before the learned Judicial Magistrate First Class, Jubbal, for certifying the inventory under Section 52A of the NDPS Act. After certifying the inventory, the case property was sealed with five seals having seal impression ‘R’ by the learned Judicial Magistrate First Class, Jubbal and in this regard certificate, Ex. P5/PW-10 was issued. The learned Magistrate observed as under:

“One white parcel sealed with 10 seals of impression ‘S’ and resealed with 5 seals of impression ‘O’ (two cloth pieces bearing three sample seals each of aforesaid impressions (respectively) also tagged with the parcel produced before the court by the police. Reader of this Court was directed to open the said parcel. During the course of opening the

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same by the reader two seals of impression “S” and two seals of impression “O” got broken.”

Thereafter, on 22.12.2020 the case property was received at State Forensic Science Laboratory, Junga, bearing eight seals having seal impression ‘S’, three seals having seal impression ‘O’ and four seals having seal impression ‘R’. On 01.11.2021, when the case property was produced before the learned Trial Court, during the statement of PW-1, it was bearing ten seals having seal impression ‘S’ four seals of SFSL, five seals of reseal ‘O’ and five seals of the Court of JMIC, Chopal and all the seals were found intact by the learned Trial Court.

Admittedly, at the time of certifying the inventory, by the learned Judicial Magistrate, during the course of the opening of the case property by the Reader of the Court, two seals having seal impression ‘S’ and two seals having seal impression ‘O’ were got broken and he resealed the parcel with five seals having seal impression ‘R’. In the State Forensic Science Laboratory also the case property was received bearing eight seals of ‘S’, three seals of ‘O’ and four seals of ‘R’. However, the prosecution has failed to explain how the case property, when produced in the Court, during the statement of PW-1, was having seal impression ‘S’ at ten places, five seals of reseal ‘O’ and five seals of the Court of JMIC, Chopal, and which were found intact. The aforesaid discrepancy in

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the prosecution case is so glaring that it may affect the core of the prosecution case and prima facie in the opinion of this Court, due to the variation in the seals, possibility of tempering of the case property cannot be ruled-out.

After hearing the learned counsel for the applicant/appellant, learned Deputy Advocate General for the respondent/State and after going through the entire evidence on record, which has been considered prima facie for the purpose of adjudicating the instant application, we are of the opinion that the applicant/appellant has made out a case for suspension of sentence imposed upon him. The Hon’ble Supreme court in the case of Bhagwan Rama Shinde Gosai vs. State of Gujrat (1999) 4 SCC 421 held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. The relevant portion of the aforesaid judgment is reproduced as under:

“3. When a convicted person is sentenced to a fixed period of sentence and when he filed an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is an different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavor should be made to dispose of the appeal on merits more so when a motion of

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expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.”

Admittedly, the appellant/applicant is a young boy of 24

years. As per the records, the appellant/applicant has already undergone sentence of more than three years and five months, as against the total sentence of 10 years awarded to him by the learned Trial Court. The perusal of the record also reveals that the instant appeal is of the year 2024 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant, therefore, he cannot be made to suffer further incarceration on such evidence led by the prosecution.

Hence, keeping in view the aforesaid background of the present case, this Court is of the opinion that it is a fit case for suspension of sentence of imprisonment. Therefore, in view of the peculiar facts of this case, the substantive sentence imposed upon the applicant/appellant Atul Kumar by learned Special (Forests), Shimla, District Shimla, H.P., in Sessions Trial RBT No. 70-S/7 of 2022/21, vide judgment of conviction and order of sentence dated 19.01.2024, shall remain suspended till final disposal of the appeal,

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however, subject to the applicant’s furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court and also subject to deposit of fine amount, if not already deposited. On furnishing the requisite bail bonds, he be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding

the present application. The application stands disposed of.

( Vivek Singh Thakur )

Judge

( Sushil Kukreja )

Judge

5^th September, 2025 (virender)

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